A lower court impermissibly denied a man accused of repeated child sexual abuse the right to fully prepare and present his alibi defense, and the Colorado Supreme Court has ordered a new trial.
The question is not “how much the defendant has been prejudiced. Rather, the rule asks whether a defendant’s substantial rights have been prejudiced at all,” wrote Justice Brian D. Boatright in the Monday decision.
In 2015, a 12-year-old girl accused Gregory Brad Fisher of sexually assaulting her repeatedly. The victim told police the assaults began around Nov. 15, 2014 and continued until March 2015. El Paso County prosecutors charged Fisher with five counts of sexual assault on a child by one in a position of trust as a pattern of abuse.
The charging documents alleged the crimes occurred between Nov. 16 and March 29, in between times that Fisher had military training or deployment. However, at trial, prosecutors played the tape of the victim’s forensic interview in which she said the assaults may have begun before Halloween. They then moved to amend the beginning date of the charging range from Nov. 16 to Oct. 1, 2014.
Fisher’s attorney objected, stating, “We have a right to prepare for defense. We have a right to bring in witnesses. We have a right to prepare our case based on what’s in front of us. What was in front of us was a date of November 16th. Now we are going back an entire month.”
El Paso County District Judge Thomas K. Kane indicated his hesitation to honor the prosecution’s request. He said the case “was framed upon a date timeline. And to now at almost the end of the evidence move to amend the date timeline strikes me as significant and quite prejudicial.”
Nevertheless, Kane allowed the modification, deeming it “only procedural and does not impact the substantive rights of defense.” Fisher did not provide an alibi during his testimony for early or mid-October.
After a jury found him guilty on all counts, Fisher appealed on the basis that a change in the date range impeded his ability to prepare a defense.
A Court of Appeals panel sided against him 2-1. Judge David J. Richman, writing for the majority, called the amendment merely a “change in form,” and pointed out that “the charges were amended before defendant testified. If he had an alibi for the additional six weeks he could have offered it.”
Judge Michael H. Berger noted in his dissent that Fisher had an alibi for the first alleged crime in the original date range: that he had been out of town until approximately Thanksgiving. If the jury had found it credible, there would have been no conviction on that count.
But such a defense from Fisher was “not limited to the first alleged assault,” Berger wrote. “In cases such as this, the ultimate determinant of whether the defendant spends the rest of his life in prison is whether the jury believes the victim. If the jury believes the victim, the defendant is convicted; conversely, if the jury rejects the victim’s testimony because the victim is not credible, acquittal is virtually assured.”
Boatright, in the Supreme Court’s opinion, acknowledged that the rules of criminal procedure allow changes to charging documents anytime before the verdict, as long as those do not infringe on the defendant’s rights.
“Ultimately, we cannot know what the jury would have decided had the amendment not occurred,” he explained. “What we do know, however, is that the amendment changed the date range from one where the first alleged assault fell squarely within Fisher’s alibi timeline (November 16 through November 27) to one where it fell partly outside that timeline (October 1 through November 27). Therefore, the amendment plainly diminished the viability of Fisher’s alibi defense for the first count.”
The Court also cited the timing of the change — after all but one witness had testified — as precluding the defense from finding additional witnesses or cross-examining the prosecution’s witnesses about the first incident of assault.
Elizabeth McClintock, Fisher's attorney, said she was pleased with the decision. "The changing of the dates of charges in order to thwart his alibi defense was an infringement of Mr. Fisher's due process rights. We are waiting to see how the district attorney's office will proceed in light of several necessary witnesses being deceased," she said.
The court vacated Fisher’s convictions and ordered a new trial. The case is Fisher v. People.